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Dr Tan Cheng Bock announces application to seek Court’s determination on constitutionality of legislation for reserved election

Dr Tan Cheng Bock has officially announced that the High Court has accepted his application to seek the Court's determination on whether the piece of legislation – that counts President Wee Kim Wee as the first Elected Presidency term for the purposes of calling the upcoming election a reserved election – is consistent with Singapore's constitution.

The former People's Action Party Member of Parliament and candidate in the Presidential Election 2011, wrote on his Facebook page:

"I would like to announce that this morning, the High Court accepted my application (HC/OS 495/2017), which seeks the Court’s determination on whether a piece of legislation (section 22 Presidential Elections (Amendment) Act 6 of 2017 which counted President Wee Kim Wee as the first Elected Presidency term for the purposes of calling a Reserved Election), is consistent with our Constitution (Articles 19B(1) and 164(1) which introduced the mechanism of a Reserved Election into our Constitution).

I am the Plaintiff and for the purposes of serving Court papers on the Government, the Defendant is the Attorney General.

The application was filed on 5 May 2017. The Court accepted my application this morning, and has fixed a pre-trial conference on 22 May 2017.

To recap, on 31 March 2017, I held a press conference explaining why in my layman’s opinion, starting the count from President Wee’s term appeared to be inconsistent with the spirit and purpose for reserved elections. I then invited the Government or AG to explain the legal reasons for their count.

On 1 April 2017 the Government through MCI said I raised no new points that require a response. I responded to say the MCI missed my point. Nothing further was heard on this issue.

Since this is a matter of national importance, I sought to find the legal answer and consulted the best constitutional lawyer I could find. He is Queen’s Counsel Lord David Pannick. I gave Lord Pannick the Commission Report, White Paper, all relevant Hansard parliamentary reports from 7 Nov 2016 to 6 February 2017, our Constitution and all related statutes on this issue. I asked him one question: whether the AG correctly advised the Government to specify President Wee’s term as the first to be counted on the basis that he was the first President to exercise elected powers.

Lord Pannick has advised that he disagrees with the AG’s advice, and that section 22 Presidential Elections (Amendment) Act 6 of 2017 as it stands is unconstitutional. After receiving Lord Pannick’s reply, I felt I could not keep his legal opinion to myself. It would be in public interest to have the Court decide which legal view is correct - Lord Pannick or the AG.

On 28 April 2017, I engaged M/s Tan, Rajah & Cheah to make the necessary application, and to produce in my affidavit Lord Pannick’s written opinion before the Court. I believe this question can be answered without confrontation or hostility. Both the Government and I have the nation’s best interest at heart. It is in nobody’s interest to have a Reserved Election that is unconstitutional.

I am satisfied that I have, to the best of my ability and capacity, done my part to do what is right in the circumstances, which is to bring to this Court’s attention Lord Pannick’s opinion. Since the matter is now before the Court, it is only right that I refrain from making any further public comment until this case is decided."

Dr Tan had earlier held a press conference on Friday (31 March) to ask the government whether it is correct to set the Presidential Election 2017 as a reserved election under the newly introduced amendments to the Elected Presidency.

"I would urge the Government to explain, or refer AGC’s opinion to Court to confirm whether AGC’s advice is in sync with the Commission’s spirit and purpose for having reserved elections." said Dr Tan in the March's press conference.

Under the amendments, a reserved election is set aside by the government for a minority race if no candidate from a particular minority group has been elected as the President after five open elections.

The government has said that the Attorney General’s Chambers (AGC) advised Prime Minister Lee Hsien Loong that 2017 will be the first reserved election. This is based on AGC counting 5 consecutive presidential terms beginning with President Wee Kim Wee.

Dr Tan questioned whether AGC’s method of counting is actually in line with the spirit and purpose put forward by the Constitutional Commission for having a reserved election.

He pointed out that the report from the Constitutional Commission which the Government has accepted, originally said: “..if free and unregulated elections produce Presidents from a varied distribution of ethnicities, the requirement of a reserved election will never be triggered."

Dr Tan who nearly won the election from the People's Action Party endorsed candidate, Dr Tony Tan back in 2011, losing a mere 0.34% after a recount, also said that if the Government simply accepts AGC’s advice without explaining why they accepted the accuracy of the opinion, he is concerned that the Elected Presidency will always be tainted with the suspicion that the reserved elections of 2017, was introduced to prevent his candidacy.